FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 66920/01 by Adriana BATTISTONI against Italy

The European Court of Human Rights (First Section) , sitting on 27 June 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr P. Lorenzen , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged on 1 March 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Italian national, born in 1943 and living in Prato (Florence). She is represented before the Court by Mrs M. Dovetto and Mr F. Dovetto , lawyers practising in Naples.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is the owner of an apartment in Ercolano , which she had let to P.D.R.

In a registered letter of 9 April 1992, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 January 1993 and asked him to vacate the premises by that date.

In a writ served on the tenant on 15 May 1992, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Portici Magistrate (Naples).

By a decision of 15 June 1992, which was made enforceable on 22 June 1992, the Portici Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 January 1994.

On 11 February 1994, the applicant served notice on the tenant requiring him to vacate the premises.

On 26 February 1994, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 14 April 1994.

Between 14 April 1994 and 19 July 2000, the bailiff made ten attempts to recover possession.

Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.

On 22 July 1999, pursuant to section 6 of law no. 431/98, the enforcement proceedings were suspended until 4 April 2000.

On 6 October 2000, the tenant spontaneously vacated the premises and the applicant recovered possession of the apartment.

THE LAW

The applicant complains under Article 1 of Protocol No. 1 to the Convention that her inability to recover possession of her apartment amounted to a violation of the right to property.

The applicant further complains under Article 6 of the Convention about the duration of the eviction proceedings and about the denial of her right of access to a court.

The Government argue that the applicant has not exhausted domestic remedies on the grounds that she failed to challenge the refusal of police assistance before the administrative courts.

The Court recalls that it has already dismissed this objection in the Immobiliare Saffi case (see the judgment Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 40-42, ECHR 1999-V). The Court sees no reason to depart from its previous finding. This objection should therefore be rejected.

The Government maintain that the measures in question amount to a control of the use of property which pursues the legitimate aim of avoiding the social tensions and troubles to public order that would occur if a considerable number of orders for possession were to be enforced simultaneously. In their opinion, the interference with the applicant’s property rights was not disproportionate; therefore, there is no violation of Article 1 of Protocol No. 1.

As to the length of the enforcement proceedings, the Government submit that the delay in granting police assistance is justified on grounds of the order of priorities established according to public-safety requirements. In any event, the Government stress that following the entry into force of Law no. 431 of 9 December 1998, the Prefect is no longer competent to determine the order of priority for the enforcement of the evictions. The date of enforcement should now be set by the District Court.

The Court considers that the application raises complex and serious issues which require a determination on the merits. It follows that it cannot be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the application inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Erik Fribergh Christos Rozakis Registrar President